Obama and the "Second Bill of Rights"

Have we given up not just the Constitution, but the Declaration of Independence as well? An Obama presidency, with an overwhelmingly Democratic Congress, could go a long way toward the completion of a European-style social welfare state that was begun in the New Deal.

In a 2001 interview on Chicago public radio, Obama lamented that “the Supreme Court never ventured into the issue of the redistribution of wealth.” The problem, he said, was that the court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.”

In this perhaps unguarded moment, Obama became one of the few liberal politicians candid enough to admit that the Constitution poses a fundamental obstacle to their agenda.

This is a popular theory in academic circles. It is the fundamental argument of Cass Sunstein, a colleague of Obama’s at the University of Chicago Law School (now on his way to Harvard), who is often mentioned as an Obama adviser and potential Supreme Court nominee, and the author of The Second Bill of Rights: FDR’s Unfinished Revolution and Why We need it More than Ever.

The second bill of rights idea derived from two famous speeches that Franklin Delano Roosevelt gave—one at the San Francisco Commonwealth Club during the 1932 campaign and his 1944 annual message to Congress. In the Commonwealth Club address, he spoke of the advent of “enlightened administration,” which would redistribute resources in accordance with an “economic declaration of rights.” In his 1944 message to Congress, Roosevelt said that “our rights to life and liberty”—the negative liberty to which Obama referred, had “proved inadequate to assure us equality in the pursuit of happiness.” He claimed that “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights.” This bill of rights included the right to a job, the right to food and recreation, the right to adequate farm prices, the right to a decent home, the right to medical care, and the right to a good education.

Of course, these are not “rights” at all—not in the sense that the framers and ratifiers of the Declaration of Independence and Constitution used the term--but entitlements. From the founding until the twentieth century, the American regime assumed that government’s purpose was to secure pre-existing natural rights—such life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody’s exercise of his own rights limits anyone else’s similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once. Entitlements, on the other hand, require someone else to provide me with the substantive good that the exercise of rights pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience.

The New Deal is often described as a “constitutional revolution.” In fact, it was much more than that. It involved a rejection not just of the structure and principles of the Constitution, but those of the theory of natural rights in the Declaration of Independence—that, as Jefferson put it, governments are instituted in order to secure our rights. Roosevelt envisioned not a new constitution, but a new idea of what Sunstein calls “a nation’s constitutive commitments.”

As to this problem, Sunstein says that “The best response to those who believe that the second bill of rights does not protect rights at all is just this: unembarrassed evasion.”

Roosevelt anticipated no constitutional problem for the New Deal, for “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”

Of course, there were severe constitutional problems with the New Deal, and Roosevelt ended up in a nasty campaign to “pack” the Supreme Court, the political reaction to which effectively ended the New Deal.

The economic bill of rights agenda has proceeded in fits and starts ever since, under the labels Fair Deal, Great Society and, it may be, whatever slogan will attach to “spreading the wealth around.”

Obama and academic liberals lament that the Supreme Court, once under the control of liberals in the Warren years, didn’t do more to advance economic equality. And most observers think that Obama will only have the chance to replace retiring liberals with new liberals on the current Court. The larger point is that liberals won’t need the court to implement the economic bill of rights, so complete will their majority be in the political branches.

Thus the real “change” for the American people, as Obama so candidly put it, is whether we want to repeal not just the Constitution, but the Declaration of Independence, in order to establish an entitlement state, or not.

More Comments:

Mark Brady -
12/21/2008

It's entirely up to you whether you respond to comments or not. Sometimes they're best left uncommented upon. In this case I'm glad you saw fit to reply. Weekends can be particularly quiet round here so a good-humored exchange about such an important subject is welcome.

I don't doubt the founders took the Declaration and Constitution seriously. That said, they didn't take the concept of individual rights seriously enough either to write a prohibition of slavery into the original Constitution or into the Bill of Rights. And neither they nor generations of Americans proclaiming their fidelity to the Constitution thought that it prohibited slavery. I'm not clear they ALL knew it was wrong. And Jefferson’s fear of the consequences of slavery for the future of the U.S. does not bear on the point I raised. The sad truth is that black chattel slavery became more firmly established as the American republic grew and prospered.

Surely the Declaration of Independence is more about the rights of (some) colonists to self-government than it is about their individual rights, rights that the state constitutions and legislatures recognized and upheld to some degree.

I'm glad – and not surprised – to read that you don't think the right to vote is a natural right. It was just that the way you wrote that passage was entirely compatible with such a position. Thanks for the clarification.

Paul Moreno -
12/20/2008

Am I supposed to respond to comments on my own posting? I don't know--I'm not an experienced "blogger."
Anyway--thanks, Mark--first of all, for finding the 23,000 missing links.
I would say that the founders indeed took the Declaration and Constitution seriously, and that their treatment of slavery confirms it. They all knew that it was wrong. There's a plethora of "wolf by the ears" and "I tremble for my country" testimony from them. And that generation did much to bring their behavior into line with their beliefs (I would not use the word "ideology.") Perhaps they could have done more, but that is the question of prudence.
I agree that a philosophy of freedom, of natural rights, is primary; but I do believe that the DofI was about individual, not collective, rights--i.e., I'm with Lincoln and Douglass against Taney and Douglas.
Finally, I did not say that the right to vote was a "natural" right. Indeed, it may not even be a "civil" right--that was the big question during Reconstruction. But it can be "a right" in a way that housing, health care, education, cable TV, and central air conditioning cannot be.

Mark Brady -
12/20/2008

I'd like to offer a rather different perspective from Paul's. I take a more relaxed view of what we may call the "constitutional revolution plus" that Paul finds in the New Deal and prospectively under the Obama presidency. And that's because I'm less enamoured of the U.S. Constitution and the Declaration of Independence than Paul is. Ultimately what sustains a free society is not a constitution but an ideology of individual rights. And if that ideology is not present, or present only in some truncated form, constitutions and declarations of rights are of no avail. In a very important sense the Declaration of Independence (which was as much, if not more, about self-government than individual rights) and the U.S. Constitution weren't taken all that seriously for the first eighty or so years. After all, that was the period during which black chattel slavery continued and flourished. As Samuel Johnson observed, "How is it that we hear the loudest yelps for liberty among the drivers of negroes?" And we shouldn't forget the interventionist policies that the individual states have pursued ever since 1776, the very same policies, of course, that the colonies pursued up to 1776.

"From the founding until the twentieth century, the American regime assumed that government's purpose was to secure pre-existing natural rights—such life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody's exercise of his own rights limits anyone else's similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once."
Since when has the "right to vote" been a natural right?

Mark Brady -
12/20/2008

I Googled "didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty" and came up with about 23,500 items!

Daniel B Klein -
12/18/2008

I'd like to examine Obama's words on negative liberty.

I Googled "that generally the Constitution is a charter of negative liberty" and came up with only one item -- your post.